Summary: Miss F complains the Council delayed planning her son’s transition to adult services. There was fault as the Council should have sought alternative respite providers sooner. The Council has agreed to make a payment to Miss F to acknowledge the impact the loss of respite for three months has had on her mental health.

The complaint

1. Miss F complains the Council only started to plan for her son’s transition to adult services two months before his 18th birthday. As a result, he has not had access to respite support causing her significant stress and affecting her mental health.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. I spoke to Miss F about her complaint and considered the information she sent, the Council’s response to my enquiries and:
• Care Act 2014
• Care and Support Statutory Guidance 2014
6. Miss F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

7. The Children Act 1989, section 17, requires councils to safeguard and promote the welfare of ‘children in need’ in their area, including disabled children, by providing appropriate services for them. Assessments of the child’s needs should take account of the needs of the whole family.

Transition from children to adult services

8. When a child reaches 18 years of age, they are legally an adult and responsibility for meeting their needs moves from the council’s children’s services to its adult services. The legal basis for assessing their needs changes from the Children Act 1989 to the Care Act 2014. However, councils can decide to treat a children’s assessment as an adult assessment and can also carry out joint assessments.
9. The Care Act 2014 says councils must carry out a social care needs “transition” assessment where there is likely to be a need for care and support after the young person turns 18. There is no set age to carry this out. The statutory guidance says transition assessments should begin when the council can be reasonably confident about what the young person’s needs for care and support will look like when they turn 18. For a young person with an EHC plan, the preparing for adulthood process should begin in year 9 (age 13 to 14).
10. The assessment must identify all the young person’s needs for care and support and identify the outcomes the young person wishes to achieve. The assessment should also consider whether the carer is able to continue in their caring role after the young person turns 18. Councils are not under a duty to meet any needs that are being met by a carer.
11. If transition assessment and planning is carried out as it should be there should be no gaps in the provision of care and support. However, if adult care and support is not in place when the young person turns 18, the council must continue providing the services under children’s legislation until it is in place or until it decides the young person does not have eligible needs.

Carers assessments

12. The Children Act 1989 requires councils to provide a range of services designed to assist family carers of disabled children to continue to provide care, or to do so more effectively, by giving them breaks from caring. Councils must assess the needs of carers with parental responsibility for disabled children on the “appearance of need” or if requested by the parent.
13. Where somebody provides care for another adult and it appears the carer may have any needs for support, the council must carry out a carer’s assessment. The Care Act 2014 says the council may meet the carer’s needs by providing a service directly to the adult needing care. The carer must still receive a support plan which covers their needs, and how the council will meet them.

Complaints procedure

14. The Council has a two-stage procedure for complaints about adult social care. It aims to reply to complaints in 20 working days. If the person is not satisfied with the response, they can ask for it to be reviewed. The complaints team will look at the response and decide if the service needs to do more to put things right.

What happened

Background

15. Miss F’s son, Mr J, is a young adult with physical and learning disabilities and health conditions. He uses a wheelchair and hoist and needs two-to-one support for personal care. Mr J has an Education, Health and Care Plan (EHCP) to help support him at school. Miss F is his main carer and supports him with all aspects of personal care and everyday living tasks.
16. In 2019, when Mr J was 16 years old, there was a preparing for adulthood review of his EHCP. This stated he was receiving three nights per month of short breaks respite care at a children’s residential unit (Home 1). He received a direct payment to provide six hours per week support at home and a local charity also provided respite care. There was a further review in March 2020. Mr J was then referred to the adult social care team for an assessment. He was allocated a transitions social worker in September 2020, aged 17.

Transition assessment

17. The transition assessment was completed in November 2020. It found Mr J’s direct payment should be increased from six hours per week to 13 hours per week and he should continue to receive 36 nights of short breaks.
18. The subsequent care and support plan noted that short breaks provision was scarce due to COVID-19 affecting staffing levels and the capacity of services. The social worker had approached the Council’s short breaks service for adults, but they did not have a suitable property. The intention therefore was for Mr J to continue to use Home 1 whilst adults short break provision was being explored. Home 1 had said Mr J could use its service until July 2021. The Council agreed to fund short breaks at Home 1 in January and February 2021.
19. The assessment also found that the demands on Miss F were increasing as Mr J became an adult and because, due to the pandemic, there had been long periods where Home 1 had not been able to offer short breaks. Miss F had experienced severe carers stress and was receiving psychotherapy. The Council referred Miss F for a carer’s assessment.

Referral to Home 2

20. The Council told Miss F that Home 2 was the nearest in-house residential unit that may be able to provide respite for Mr J when he was an adult. The Council sent Home 2 a referral form, the care and support assessment, a support plan from Home 1 and risk assessments.
21. Mr J turned 18 in January 2021 and a new COVID-19 lockdown started which meant visits could not be made to Home 2. The social worker spoke to Miss F in February. He said that Home 2 had assessed Mr J and would be able to offer him a place.

Miss F’s complaint

22. Miss F complained to the Council on 10 February 2021. She said Home 2 had not even met Mr J and they had not visited the unit. She was concerned Home 2 could not meet Mr J’s needs and said she would not agree to Mr J attending until they had visited. Miss F also complained she had not been given any other options to consider than Home 2. Mr J had a short break at Home 1 in February.
23. Miss F visited Home 2. She says the manager told her it was not a suitable placement for Mr J and it could not meet his health needs. She also visited a health-led unit which was for people with behavioural problems and not suitable for Mr J, and two other in-house residential units.
24. The Council issued its formal response to Miss F’s complaint on 26 April. It apologised that Mr J’s transition to adult services had not started earlier and that Miss F had been unable to visit Home 2. It agreed the health-led unit was not suitable; it had not referred Mr J there.
25. The Council said that Home 2 was building a new unit which might be appropriate for Mr J. It would be ready in a few months. It said Home 1 could continue to support Mr J until a new respite option was available.
26. Miss F remained dissatisfied. She replied on 30 May to say that she had not been told about Home 2’s building plans when she visited, and that Home 2 had said it could not meet Mr J’s needs. She noted Mr J had been unable to stay at Home 1 since February and it would be unable to accommodate him after July. Miss F said none the Council’s in-house providers could meet Mr J’s needs and the lack of respite and the situation was having a detrimental impact on her mental health.
27. In response to my enquiries the Council said, “A number of attempts were made by both the Council and Miss F to access overnight care [at Home 1] between February and June 2021, however Mr J was not allocated overnight stays by Home 1 due to COVID-19 outbreaks, reduced availability due to infection control measures, and due to Home 1’s decision to prioritise their provision for under 18s.”
28. The Council asked an occupational therapist to assess whether Home 2 would be suitable for Mr J. The OT found it would be suitable if additional equipment was purchased. She noted Home 2 was undergoing renovations which were due to be completed in the autumn.
29. The Council met Miss F at her home on 14 July. It says it discussed with her that alternative respite services would be far from her home. It agreed to purchase the equipment necessary for Home 2 and said Miss F could advise on the renovations.
30. The Council sent its final complaint response on 17 August. It apologised that Miss F had been asked to visit services that were not suitable. This was partly because staff had been unable to visit the placements during the pandemic. It agreed Miss F should not have been asked to visit the health-led unit, although it was unclear who had suggested this. The Council would provide staff with further guidance on the short breaks provision that was available.
31. The Council said it always consulted first with in-house providers. It was still exploring Home 2 as a possible provider for Mr J’s respite and it had discussed with Miss F increasing support at home in the meantime. If Home 2 was unsuitable, it would commission external provision. The Council said it was not responsible for Home 1’s decision to prioritise support for under 18s when it had reduced capacity due to COVID-19. A new social worker had been allocated to Mr J and the Council would arrange a carer’s assessment.
32. In September the renovations to Home 2 were delayed due to structural problems. The Council discussed alternative, external providers with Miss F in October. Home 3 was identified as a possible provider in November and Miss F visited with the OT. In December it was agreed that Mr J should attend Home 3, although Miss F told me in February 2022 that he had still not had any overnight respite and she had not had a carer’s assessment.

My findings

33. Miss F complains that the Council delayed the transition planning for Mr J. The transition assessment was completed two months before Mr J turned 18. I appreciate Miss F considers this was too late, but it is not fault. The statutory guidance says transition assessments should be carried out “when the council can be reasonably confident about what the young person's needs for care and support will look like when they turn 18” but it sets no deadlines for them. As the assessment was completed before Mr J became an adult there was no fault.
34. It was appropriate for the Council to plan for Mr J to continue to have respite at Home 1 whilst it explored the adult provision, as the law says the council must continue providing the services under children's legislation until adult provision is in place and there should be no gaps in care.
35. There was poor communication with Miss F after the referral to Home 2. She says she was told Home 2 could offer Mr J a place, but at that stage Home 2 had not fully assessed Mr J and she had not visited the unit. This caused her to complain to the Council, but I do not consider this message caused her or Mr J any significant injustice.
36. In February 2021 Miss F was concerned she had not been offered alternative options to Home 2. The Council was entitled to first consult with in-house providers as to whether they could meet Mr J’s needs before it started to consider external providers. So I do not find fault here.
37. However, I find there was delay after Miss F visited Home 2 in spring 2021. Miss F told the Council that the manager had said it could not meet Mr J’s needs. At this point the Council should have asked Home 2 for a further assessment of Mr J. I have seen no evidence it did, although it asked the OT to assess.
38. The Council was also aware by May 2021 that Home 1 could no longer provide support to Mr J. The Council is correct that it was not responsible for this decision by Home 1, but as it left Mr J without respite, the Council should have taken action to find alternative provision sooner.
39. The Council says Miss F wanted respite provision that was close to home, but I have seen no evidence that she agreed to wait for months without any respite. I consider the Council should have prioritised meeting Mr J and Miss F’s needs over securing in-house provision and close geographical distance. A carer’s assessment may have clarified Miss F’s preferences, but one had not been done, which was fault.
40. I find that it was fault for the Council not to look for alternative, external providers in June 2021. This has caused injustice to Miss F, as she has been left without a break for longer than necessary.
41. I note that once external providers were sought in October 2021, a suitable one was found by November and agreed to in December. If the Council had acted promptly to find alternative providers in June 2021, Mr J may have been able to access respite care from September.
42. The Council delayed responding to Miss F’s complaints, which is fault. Its response to her February 2021 complaint should have been sent by 10 March but was issued on 26 April. The response to her 30 May escalation should have been sent by 30 June but was sent on 17 August. In response to my draft decision, the Council said it had been trying to support Miss F and resolve the issues before it responded to the complaint. It now accepted it could have set out how it would support Miss F in a complaint response.
43. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress or loss of benefit caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on.
44. Where a complainant has been deprived of services which would have improved his or her daily life, we will usually recommend a remedy payment in the range of £150 to £350 a month. In this case, I find that Miss F has lost the benefit of three nights respite per month for three months, which has affected her mental health.

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Agreed action

45. Within a month of my final decision, the Council has agreed to:
• Apologise to Miss F for the delay in responding to her complaints
• Pay her £450 to acknowledge the distress caused by the loss of respite.

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Final decision

46. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman